Spencer v Burton
[2015] QCA 104
•16 June 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Spencer v Burton [2015] QCA 104
PARTIES:
KENT RICHARD SPENCER
(aka KENNETH RICHARD SPENCER)
(appellant)
v
DAPHNE BURTON
(respondent)FILE NO/S:
Appeal No 6469 of 2014
SC No 506 of 2012
SC No 820 of 2012DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Townsville – Unreported, 23 June 2014DELIVERED ON:
16 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2015
JUDGES:
Holmes and Gotterson JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal should be allowed.
2. The judgment and declarations made on 23 June 2014 should be set aside.
3. The matter should be remitted to the trial division for determination by a different judge.
4. The application for leave to adduce further evidence and notice of contention should be refused.
5. The parties have leave to file any submissions on costs within 14 days of the date of delivery of the judgment.
CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF ADMINISTRATION GENERALLY – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – QUEENSLAND – where the deceased died of cancer in July 2012 – where Kent Richard Spencer obtained Letters of Administration on Intestacy of her estate on the basis that the he was her de facto partner – where the deceased’s mother brought an application seeking a declaration that Spencer was not a spouse or de facto partner of the deceased, the Letters of Administration of Intestacy granted to him be revoked and that a replacement grant of Letters of Administration of Intestacy be granted to her – where the primary judge was not satisfied that Spencer had proven on the balance of probabilities that he and the deceased had lived together as a couple on a genuine domestic basis for the required two year period prior to her death – where the primary judge made declarations and orders in terms of the application brought by the deceased’s mother – whether the primary judge erred in his reasons by acting unreasonably and against the weight of evidence in making findings of fact – whether the primary judge erred in his reasons by attributing little or reduced weight, misconstruing and failing to have regard to the evidence – where the reasons of the primary judge reveal an overemphasis on financial and property matters and a discounting of other indicia which were clearly present – whether the appeal should be allowed
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the respondent seeks leave to adduce new evidence on the basis that the evidence supports the findings of the primary judge – where the evidence refers to the appellant’s dealing with the estate funds prior to the trial and after those orders were made restraining him from dealing with estate property – where it seems that a decision was made by counsel for the respondent that the application for an account would not be pursued at the time of the trial – whether the Court is satisfied that there has in fact been reasonable diligence and that the documents were able to be obtained prior to trial
Acts Interpretation Act 1954 (Qld), s 32DA
Succession Act 1981 (Qld), s 5AA
Uniform Civil Procedure Rules 1999 (Qld), r 766Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, followed
Lenehan v Queensland Trustees Ltd [1965] Qd R 559, cited
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited
O’Neill v Martini & Anor [2012] QSC 198, cited
Perry v Killmier & Anor [2014] QCA 64, cited
PY v CY (2005) 34 Fam LR 245; [2005] QCA 247, cited
S v B [2005] 1 Qd R 537; [2004] QCA 449, cited
Wiltshire v Amos[2010] QCA 294, citedCOUNSEL:
S J Keim SC for the appellant
D B Fraser QC, with J A Greggery, for the respondentSOLICITORS:
Purcell Taylor Lawyers for the appellant
Connolly Suthers Lawyers for the respondent
HOLMES JA: I agree with the reasons of Ann Lyons J and the orders she proposes.
GOTTERSON JA: I agree with the orders proposed by Ann Lyons J and with the reasons given by her Honour.
ANN LYONS J: Introduction Sharon Ann Burton died of cancer on 6 July 2012 at the age of 56. On 14 August 2012, Kent Richard Spencer obtained Letters of Administration on Intestacy of her estate on the basis that he was Sharon Burton’s de facto partner.
Five months later on 7 December 2012, Sharon Burton’s mother, Daphne Burton, filed an application seeking a declaration that Kent Spencer was not a spouse or de facto partner of Sharon Burton. She also sought orders that the Letters of Administration on Intestacy granted to him be revoked and that a replacement grant of Letters of Administration on Intestacy be granted to her.
After a four day trial commencing on 8 July 2013, judgment was delivered 11 months later on 23 June 2014. The primary judge was not satisfied that Kent Spencer had proven on the balance of probabilities that he and Sharon Burton had lived together as a couple on a genuine domestic basis for the required two year period prior to her death.
On 23 June 2014, the primary judge made declarations and orders in terms of the application brought by Daphne Burton. The Letters of Administration on Intestacy granted to Kent Spencer on 14 August 2012 were revoked and orders were made that Letters of Administration on Intestacy be granted to Daphne Burton subject to the formal requirements of the registrar.
The appeal
Kent Spencer (the appellant in these proceedings) now seeks to appeal the primary judge’s decision. The grounds of appeal filed on 10 July 2014 contend that the primary judge:
1.erred in finding that the appellant was not a de facto spouse of Sharon Ann Burton (the deceased) within the meaning of s 5AA of the Succession Act 1981 (Qld) (Succession Act);
2.ought to have found that the appellant was a de facto partner of the deceased within the meaning of s 5AA of the Succession Act;
3.erred by finding that the appellant had not proven on the balance of probabilities that the appellant and the deceased lived together as contemplated by s 32DA of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act);
4.erred in attributing too great a role to financial and property matters;
5.lost any forensic advantage in hearing the evidence due to the delay between the hearing and the delivery of judgment and such delay also caused or contributed to errors in the judgment;
6.erred and acted against the weight of the evidence and unreasonably in making findings of fact that:
(a)there was an absence of circumstances of co-ownership or acquisition of property or any arrangements for financial support or interdependence between the appellant and the deceased;
(b)the appellant’s care of his elderly mother and his work hours meant that he had precious little time to spend with the deceased;
(c)the appellant and the deceased only went on a holiday to Airlie Beach in the period between February and March 2012;
(d)the lease of the three bedroom apartment was only taken out jointly by the appellant and the deceased so the appellant could better care for the deceased in the latter stages of her illness;
(e)Colleen Weber was simply a social friend of the deceased; and
(f)Lynette Parkinson and Mark Gannon were simply social friends of the deceased.
7.erred in attributing little or reduced weight to the evidence of:
(a)Hanne Secher;
(b)Adrian Hepi;
(c)Desleigh Lindberg; and
(d)Robert Lillington.
8.erred in misconstruing the evidence of Colleen Weber and Peter Perkov;
9.erred in failing to have any regard to the evidence of Richard Taylor;
10.erred in finding that the evidence of Marion Hanslow, the appellant’s mother, was not corroborative of the appellant’s evidence;
11.erred in finding that the evidence of Daphne Burton (the respondent in these proceedings) in relation to the deceased’s stay in Toowoomba between May and November 2009 was largely uncontroversial; and
12.because of the accumulated errors of the learned trial judge, made adverse findings concerning the reliability of the appellant’s evidence which should be set aside or disregarded on appeal.
The appellant seeks orders that the judgment given on 23 June 2014 be set aside and that the respondent’s application for declaratory relief and orders at first instance be dismissed. Alternatively, the appellant seeks orders that the respondent’s application for declarations and orders be remitted to the Trial Division to be heard according to law by another judge.
Application to Adduce Further Evidence and Notice of Contention
On 12 March 2015, the respondent filed an application to adduce further evidence and a notice of contention.
The application to adduce further evidence is brought pursuant to r 766(1)(c) and r 766(2) of the Uniform Civil Procedure Rules 1999 (Qld) and relates to the evidence of the appellant’s conduct relevant to the issues in the notice of contention and the further evidence obtained subsequent to the trial pursuant to the Letters of Administration on Intestacy granted to the respondent.
The grounds of contention are that:
1.The conduct of the appellant in failing to account for or disclose the existence of estate funds held in his bank accounts, in breach of an order of the Supreme Court dated 31 January 2013, constitutes an admission that he had no faith in the merits of his own case.
2.The conduct, admitted by the appellant, that he had, in breach of the order of 31 January 2013, applied estate funds to his own benefit and failed to truthfully account for the funds he had held was a further basis upon which the learned primary judge could and should have found the appellant to be a witness lacking in credit.
3.The swearing of affidavits on 14 February 2013 and 7 June 2013, which were false with respect to his dealings with the estate funds, was a further basis upon which the primary judge could and should have found the appellant to be a witness lacking in credit.
The issues raised in the notice of contention and the application to adduce further evidence will be dealt with after a determination of the appellant’s grounds of appeal.
The issue before the trial judge
The issue before the trial judge, therefore, was whether the appellant was the spouse of the deceased on her death pursuant to s 5AA of the Succession Act. The relevant provisions of which are as follows;
“5AA Who is a person’s spouse
(1)Generally, a person’s spouse is the person’s—
(a)husband or wife; or
(b)de facto partner, as defined in the Acts Interpretation Act1954 (the AIA), section 32DA; or
(c)registered partner, as defined in the AIA, schedule 1.
(2)However, a person is a spouse of a deceased person only if, on the deceased’s death—
(a)the person was the deceased’s husband or wife; or
(b)the following applied to the person—
(i) the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;
(ii) the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or
(ba)the person was the deceased’s registered partner; or
(c)for part 4, the person was—
(i) a person mentioned in paragraph (a), (b) or (ba); or
(ii) the deceased’s dependant former husband or wife or registered partner.
(3)Subsection (2) applies—
(a)despite the AIA, section 32DA(6) and schedule 1, definition spouse; and
(b)whether the deceased died testate or intestate.”
It was clear that the appellant was not married to or in any other registered relationship with the deceased in accordance with s 5AA(1)(a) or (c) of the Succession Act. The appellant argued, however, that he was a spouse pursuant to s 5AA(1)(b) of the Succession Act because he was the deceased’s de facto partner, as defined in s 32DA of the Acts Interpretation Act, which is in the following terms:
“32DA Meaning of de facto partner
(1)In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
(2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—
(a)the nature and extent of their common residence;
(b)the length of their relationship;
(c)whether or not a sexual relationship exists or existed;
(d)the degree of financial dependence or interdependence, and any arrangement for financial support;
(e)their ownership, use and acquisition of property;
(f)the degree of mutual commitment to a shared life, including the care and support of each other;
(g)the care and support of children;
(h)the performance of household tasks;
(i)the reputation and public aspects of their relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.”
Accordingly, in order to prove that he was a ‘spouse’ for the purposes of the Succession Act, the appellant had to establish that he and the deceased were de facto partners and that at the date of her death on 6 July 2012 and for the two years previously, he and the deceased were “living together as a couple on a genuine domestic basis” within the meaning of s 32DA of the Acts Interpretation Act.
In S v B,[1] this Court held that the onus is on the party asserting the relationship existed at a particular date or subsisted for a time between one date and another to prove on the balance of probabilities that it was so in the period asserted. In relation to the question as to whether or not a de facto relationship existed in this case, it was therefore not sufficient to show that at some point in their relationship they lived together on a genuine domestic basis for at least two years, but that in the two year period before the deceased’s death they lived together on that basis.
[1][2005] 1 Qd R 537, [2], [9], [33] and [50].
Therefore, despite the fact that the current respondent was the applicant in those proceedings, the onus at trial was on the current appellant to establish that he and the deceased were ‘de facto partners’ for at least two years, ending on her death. The relevant two year period was the period between 6 July 2010 and 6 July 2012.
The decision at first instance
At trial, there was no dispute between the parties that there had been an ongoing relationship between the deceased and the appellant which had commenced in 1999. At trial, Counsel for the respondent argued, however, that despite the ongoing nature of the relationship, it had diminished from 2003 or 2004 onwards and that there were a number of events that had contributed to the further lessening of the relationship between 2007 and 2009. Counsel for the respondent also acknowledged at trial that following the deceased’s diagnosis of breast cancer in November 2010, the appellant was involved in her life to a greater extent, particularly following the indication that the cancer was terminal in November 2011. Counsel for the respondent, however, argued that the deceased and the appellant had not lived together as a couple on a genuine domestic basis for the requisite two years prior to her death.
Key findings on the s 32DA criteria
The primary judge worked through a consideration of a number of factors in ascertaining whether the appellant and the deceased were living together as a couple on a genuine domestic basis for the requisite period of two years which ended at her death in July 2012. Those factors included some of the indicia listed in s 32DA of the Acts Interpretation Act. It is clear that any of the couple’s circumstances can be taken into account in determining the question as to whether they were living together as a couple on a genuine domestic basis and that none of the indicia listed in s 32DA are considered to be a necessary prerequisite to any finding.
In his Honour’s reasons, it is clear that the primary judge accepted that the appellant was very fond of the deceased and loved her and that they were a close and intimate couple for much of the 13 years of their relationship.[2] He also accepted that despite his infidelity in 2009, the appellant and the deceased reconciled and continued to present as a couple on social occasions.[3] As his Honour correctly identified, the question was not whether they presented as a couple, but whether they were living together as a couple in a genuine domestic basis for the period of two years ending on 6 July 2012.[4]
[2]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37] and [40].
[3]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37].
[4]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37].
The primary judge considered that the main issues in contention in terms of the criteria in s 32DA(2) of the Acts Interpretation Act were:
1.The nature and extent of the common residence;
2.The degree of financial dependence or interdependence and arrangements for financial support;
3.Their ownership and acquisition of property; and
4.The reputation and public aspects of the relationship.[5]
[5]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, 20-22.
His Honour noted that there was not a close relationship between the appellant and the deceased’s family, but considered that it was merely one factor to be considered.[6] It was clear that there were no children of the relationship.[7]
[6]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [38].
[7]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [40].
In terms of the degree of mutual commitment to a shared life, including care and support of each other, and the performance of household tasks, the primary judge concluded that the evidence was mixed.[8] His Honour accepted that the deceased and the appellant shared a home in 1999 and that the appellant made a contribution by assisting with the renovation and improvement of that home at Sooning Street in Townsville.[9] The primary judge indicated, however, that those events took place many years before the two year period he had to consider.[10]
[8]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[9]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[10]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
The primary judge also accepted that in the latter months of the deceased’s life when she was ill, the appellant helped and cared for her and had entered into a lease on a larger three bedroom apartment at Metro Quays, commencing on 23 June 2012, as part of an arrangement to enable him to better care for the deceased during the final months of her life.[11]
[11]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
The primary judge then came to an analysis of the reputation aspects of the relationship and referred to the evidence given for both sides by persons who had known the deceased and the appellant as to whether they conducted themselves consistently or inconsistently as “de facto partners”.[12] The primary judge made a ruling in relation to the admissibility of that evidence indicating that much of the evidence which had been given was hearsay or opinion evidence.[13] The primary judge also indicated that even in relation to statements made by the deceased during her life which were against her pecuniary of proprietary interest, care had to be taken to look for corroborative evidence in light of the fact that such evidence is difficult to test.[14]
[12]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[13]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [29].
[14]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [29].
In the subsequent seven paragraphs, the primary judge analysed the evidence of some 20 of those witnesses in very short compass.[15] The evidence of a number of witnesses including Debra Thomas, Katrina Johnson, Kay Tate, Desleigh Lindberg, Robert Lillington and Hanne Secher were considered to be “infected, in the view I take, by hearsay”[16] or were held to be of “little weight as it appeared to be infected by hearsay”[17] and were not considered in any detail by the primary judge.
[15]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30]–[36].
[16]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [32].
[17]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [36].
The reasons of the primary judge also make it plain that whilst he was satisfied that the appellant lived from time to time at the deceased’s Metro Quays apartment, it was not to the extent he argued for, that is, in the two years prior to the deceased’s death.[18] In particular, he placed reliance upon and specifically accepted the evidence of the neighbours, Raymond and Eleanor Williams.[19] That evidence was that they were not aware that the appellant ‘ever’ lived at the unit and that when the deceased was away, Mrs Williams would collect her mail. Mrs Williams also gave evidence that whilst she saw the deceased almost daily, she was never introduced to the appellant.[20] She did, however, say that she did see him picking the deceased up sometimes and that they had an issue about dirt on his car at one point.[21] Whilst Mr and Mrs Williams’ evidence was that they would regularly have dinner with the deceased on Tuesdays at the Cowboys Leagues Club and socialise with her at Christmas, the appellant was not present at those events.[22] They also observed that the deceased’s car space was often empty.[23]
[18]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[19]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
[20]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
[21]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
[22]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
[23]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
The primary judge was satisfied that the life the deceased and the appellant shared together was more committed in the early years of their relationship and in the last two to three months of the deceased’s life.[24] The real issue related to the nature of the relationship in the intervening period. The primary judge accepted that in the last two years before the deceased’s death, the appellant spent evenings at the one bedroom apartment at Metro Quays prior to the move to the larger apartment. He was not persuaded, however, that the deceased and the appellant lived together as a household at Metro Quays, so that it could be said they shared a life and performed household tasks together to the extent that it is possible to conclude that there was that degree of mutual commitment that s 32DA of the Acts Interpretation Act referred to.[25] His Honour continued:
“[41] … My impression from the evidence of the witnesses called in both cases and also from that of the respondent is that the life they shared together may have been more committed in the years at Sooning Street and perhaps for some time thereafter and perhaps in the last two or three months of Sharon’s [the deceased’s] life.” [26] (my emphasis and citations omitted)
[24]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[25]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
[26]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [41].
His Honour also considered that the “ambiguity” about the commitment to a shared life together was “also reflected in the evidence going to the reputation and public aspects of the relationship”.[27] He concluded that “The evidence of the witnesses called who were friends and acquaintances of both Sharon [the deceased] and the respondent [the appellant] has left me with a sense of uncertainty”.[28] Whilst he accepted that the appellant and the deceased presented socially as a couple and entertained at Metro Quays, given the evidence of the Mr and Mrs Williams, he was not satisfied that the appellant was present as “often as he would have it”.[29] It is clear, therefore, that whilst accepting they consistently presented as a couple socially, the primary judge discounted that finding because he had not reached a concluded view about the evidence of the shared life together.
[27]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [42].
[28]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [42].
[29]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [42].
However, in terms of the issues of ownership, use of and acquisition of property and the degree of financial dependence and interdependence, the primary judge considered that the evidence “was clear and unambiguous”.[30] His Honour noted that the deceased and the appellant were never co-owners of property and, despite the appellant’s evidence that his financial circumstances necessitated the properties being registered in the deceased’s name, his Honour noted that even in the years subsequent to the resolution of the appellant’s financial difficulties he made no payment towards the mortgage or utilities in relation to the properties even after his personal injuries payout.[31] In this regard, it is clear that the primary judge placed particular reliance on this aspect of the evidence because it was certain in contrast to the “shared commitment” aspect which he considered to be uncertain.
[30]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [43].
[31]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [43].
The primary judge noted that the only exclusion from the conclusion that they kept their financial affairs completely separate was the evidence that shortly before the deceased’s death, there was a joint lease of a three bedroom apartment at the Metro Quays complex for 12 months.[32] However, the primary judge considered that was only done two weeks before the deceased’s death and concluded that it did not reflect the living arrangements or the relationship between the two over the entirety of the two years before her death.[33]
[32]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [45].
[33]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [45].
The primary judge also considered that the documentary evidence supported the finding that the deceased made all of the mortgage payments and paid all of the utilities and outgoings in respect of both properties and that they did not have a joint bank account.[34] His Honour also noted that even when the deceased was ill and she received her lump sum superannuation payment, she made no payment to assist the appellant when he had substantial credit card bills.[35] No reference, however, was made by the primary judge to the hospital documents completed in 2011 and 2012 where the deceased referred to the appellant as her “partner” or her “de facto partner” which had been relied upon by the appellant at trial.
[34]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [43].
[35]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [43].
The primary judge also considered that it was significant that the appellant was increasingly involved in the care of his mother, and that by 2009 he received a carer’s payment between 13 January 2009 and 13 July 2012.[36] He had stated in his application for the allowance that he was providing care to his mother seven days a week for approximately 39 hours a week.[37] When confronted at trial with the fact that he was spending a lot of time with his mother during the relevant period, the primary judge noted that the appellant had contended that the deceased had “slept over” at his mother’s flat which the primary judge did not find persuasive.[38]
[36]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [20] and [37].
[37]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [20].
[38]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37].
It was also significant to the primary judge that when the deceased spent some time in 2009 in Toowoomba caring for her mother, she took the keys to the Metro Quays apartment from the appellant and excluded him from the unit whilst she was away.[39] The primary judge also noted the appellant’s affair in 2008 which had resumed in June or July 2009 whilst the deceased was in Toowoomba.[40]
[39]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [23].
[40]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [25].
Significantly, the primary judge concluded that the appellant, who bore the onus in the case, was an unpersuasive witness.[41] He also considered that notwithstanding that there was some support for the appellant’s evidence of the nature and circumstances of his relationship with the deceased in the evidence of the witnesses, he considered that there were ambiguities, particularly in relation to:
“[46] …their dealings personally with respect to household arrangements, a shared life and mutual commitment when combined with the absence of any circumstance of co-ownership or acquisition of property or any arrangements for financial support or financial dependence or [interdependence] lead me to conclude that the respondent [the appellant] has not proven on the balance of probabilities that he and Sharon [the deceased] lived “together as a couple on a genuine domestic basis” as contemplated by s 32DA.”[42] (citation omitted)
[41]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [46].
[42]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [46].
The primary judge ultimately concluded that the appellant had not proven on the balance of probabilities that he and the deceased lived together as a couple on a genuine domestic basis as contemplated by s 32DA of the Acts Interpretation Act.
The appellant’s outline of argument
The grounds of appeal are set out in the Notice of Appeal and have already been referred to. In essence, the appellant argues that the primary judge:
(a)did not come to terms with the evidence due to delay, and misconstrued or attributed little weight to significant aspects of the evidence and generally acted against the weight of evidence.
(b)erred in the application of the criteria set out in s 32DA of the Acts Interpretation Act and, in particular, attributed greater weight to financial and property matters.
The respondent’s outline of argument
The respondent argues that the appeal concerns the evaluative approach taken by the primary judge to the findings of fact and there is no appealable error. It is also argued that the findings tend very strongly against the appellant’s contention that he and the deceased were living together as a couple on a genuine domestic basis. The respondent argues that there is no basis for concluding that the primary judge overlooked evidence or misapplied a principle and that even though there was delay in giving judgment, this did not cause or contribute to error or result in a decision that was unsafe. Furthermore, the finding as to credibility was based on the appellant’s own admission and a controversy with a neighbour of the deceased. It is also argued that there was no independent evidence or documentation which was accumulated over the 13 years which would support the appellant’s own assertions as to the ultimate issue.
The respondent argued that where an evaluative process is undertaken by a primary judge, for an appellant to succeed it is necessary to demonstrate an error of legal principle or a significant error of fact finding which is so manifestly unreasonable as to indicate an application of an incorrect principle or a misunderstanding of the facts. In relation to the s 32DA criteria, the Court of Appeal in Perry v Killmier & Anor[43] held that in deciding whether a person and another are living together as a couple on a genuine domestic basis, any of their circumstances can be taken into account and that those circumstances may or may not include the matters listed in s 32DA(2).[44] It is submitted that s 32DA(3) implicitly recognises that the weight, if any, to be afforded to the circumstances listed in subsection (2) will be a matter for the trial judge in each case.[45]
[43][2014] QCA 64, [60].
[44]Perry v Killmier & Anor [2014] QCA 64, [60].
[45]Perry v Killmier & Anor [2014] QCA 64, [60].
The appellant’s submission on the alleged errors in relation to the evidence
The appellant argues that the trial judge lost any forensic advantage in hearing the evidence due to the delay between the hearing and the delivery of judgment and that delay caused or contributed to errors in the judgment. The appellant argues that those errors resulted in the decision being unsafe.
It is also argued that the primary judge erred in his analysis of the evidence of a number of witnesses. It is argued that he erred when he found that Colleen Weber was simply a social friend of the deceased, as she was in fact a very close friend. It is argued that the primary judge misconstrued her evidence when he found that it was mainly based on hearsay because her evidence included her observations of the couple over many years, including the period from 2010 to 2012 which included visits to their unit. She also gave evidence that the deceased initially told her that ‘they’ had bought the Metro Quays apartment, which was an exception to the hearsay rule[46] and was admissible on the basis that it was a statement at the time of the purchase made by the deceased which was against her proprietary interests.
[46]Lenehan v Queensland Trustees Ltd [1965] Qd R 559, 573.
It is also argued that the primary judge erred in finding that Lynette Parkinson and Mark Gannon were simply social friends of the deceased because their evidence was that they had known her since 2001 and Ms Parkinson’s evidence was that she had a close relationship with the couple in the period that followed. The appellant argues that they were more than social friends and they gave assistance during the deceased’s fight with cancer. Their unchallenged evidence was that they made observations of the appellant and the deceased as a couple, their visits to the apartment at Metro Quays, their relationship between 2010 and the deceased’s death, the care the appellant provided to the deceased and the love they had for each other.
It is also argued that the primary judge erred in attributing little or reduced weight to the evidence of Hanne Secher when she had known the deceased all of her adult life and was her best friend for over 30 years. Her evidence was unchallenged as to her observations of the appellant and the deceased at the Sooning Street unit and that the deceased told her that the loan had been taken out in her name as the appellant had an unresolved issue about a previous fire. She also gave evidence that the appellant had done work on the unit at Sooning Street.
Ms Secher also gave evidence that the deceased and the appellant had shared the Metro Quays apartment and that once again the unit was in the deceased’s name because of the fire insurance issue. She gave evidence that the deceased wanted the appellant to have the Metro Quays apartment as his home and gave evidence of her observations of them at the unit. She stated that the appellant had cared for the deceased and that he was the love of her life.
It is also argued that the primary judge erred in considering the evidence of Adrian Hepi was of reduced weight because he was not often in Townsville when the evidence was that he returned quite a bit and always caught up with the appellant and the deceased. He also gave evidence of being in Townsville in the early part of 2010 and 2011, which included visits to the unit at Metro Quays and his observations. Similarly, the evidence of Desleigh Lindberg and Robert Lillington should have been referred to in relation to the reputation and public aspects of the relationship.
The appellant also argued that the primary judge erred in failing to have regard to all the evidence of Richard Taylor when he gave evidence of his visits to the Sooning Street unit and the Metro Quays unit, particularly as he was closer to the deceased than to the appellant. He also gave evidence of his visits to the Metro Quays apartment after the deceased’s return from Toowoomba. His evidence was to the effect that it was obvious that there were two people living in the unit, as there were clothes in the unit belonging to the appellant and men and women’s toiletries. His view was that they were living there as a couple. He also gave evidence that when the deceased was diagnosed with cancer, he visited the Metro Quays unit at least twice after that diagnosis and considered they were still living as a couple in the unit.
It is also argued that the primary judge erred in finding that the evidence of Ms Hanslow was not corroborative of the appellant’s evidence. It is clear that the primary judge did not give reasons as to why he did not accept her evidence which was corroborative of the appellant’s evidence other than finding she was ‘vague’.
It is also argued by the appellant that the primary judge erred in finding that the respondent’s evidence about the return to Toowoomba for Christmas in 2009 by the deceased was largely uncontroversial when there were shortcomings in that evidence at the trial. In particular, the respondent’s diary entries recorded the deceased as leaving for Brisbane on 31 December 2009 when it was clear from other evidence that the deceased was already in Brisbane with the appellant on 30 December 2009. Furthermore, the respondent stated that the deceased went to Laidley on 24 December 2009 whereas in her affidavit she said that the deceased had spent Christmas with her and the appellant had gone to Laidley by himself. It is clear that the deceased had gone to Laidley with the appellant and they spent Christmas Day together and not with the respondent.
The appellant argued that the conclusions of the learned trial judge must fall because they contained legal errors in relation to the legal concepts being applied and they contained factual errors which were not redeemable by the findings on credit.
The respondent’s argument on the witnesses
The respondent argues that the appellant was not accepted as a witness of credit and that the findings of credit made against the appellant are important. An appeal court is not in as good a position as the trial judge to decide the proper inference to be drawn from the facts and ordinarily an appellate court will not disturb a primary judge’s findings based upon contested evidence and will usually only do so where the decision is glaringly improbable or contrary to compelling inferences.[47] It is argued that the appeal court should not be misled by “overenthusiastic evidence from the only party alive who can still give the evidence as to the exact relationship”.[48]
[47]Perry v Killmier & Anor [2014] QCA 64, [70]-[71].
[48]O’Neill v Martini & Anor [2012] QSC 198, [48] per Douglas J citing Western v Public Trustee (1986) 4 NSWLR 407, 409.
The respondent argued that the adverse credit findings were open on the evidence and the primary judge had a sense of unease in relation to a number of matters:
(a)his evidence about the deceased staying overnight at his mother’s house;
(b)his responses to questions about his carer’s allowance;
(c)his evidence explaining his residential address on driver and taxi licence applications;
(d)his evidence that the unit in the deceased’s name at Metro Quays was considered a joint property, particularly when the appellant’s exclusion from the unit while the deceased was absent was inconsistent with his own case that it was a joint property;
(e)his evidence that he financially supported the deceased for a period of four to five weeks when they lived at Airlie Beach in February and March 2012; and
(f)his claims as to the extent he was present at the deceased’s unit.
Furthermore, the primary judge’s finding about the extent the appellant was present at the unit was made on the basis that the evidence of Raymond and Eleanor Williams was preferred to that of the appellant. The respondent submits that that finding was significant with respect the appellant’s failure to establish that he and the deceased lived together on a genuine domestic basis. It was submitted that it was a significant aspect of the appellant’s failed claim.
The respondent argued that the sole challenge to the multiple adverse credit findings is to the use of the words “slept over” and otherwise no finding can be said to be affected by error. It was argued that the use of the phrase “slept over” was immaterial to the assessment by the trial judge that the appellant’s evidence was unpersuasive.
The respondent argued that another alleged error was a finding that Colleen Weber was simply a social friend, where it is clear the word “simply” was not used in the judgment and his characterisation was unremarkable. The respondent argued that Ms Weber’s evidence does not go beyond the findings of the primary judge that the deceased and the appellant presented socially as a couple, entertained others as a couple at the Metro Quays apartment, that there was evidence of male occupation at the unit at different times and that the appellant cared for the deceased in the latter months of her life.
Similarly, the respondent argued that the characterisation by the primary judge that Lynette Parkinson and Mark Gannon were social friends of the deceased accurately reflects their knowledge of the deceased as Ms Parkinson had little to do with the deceased in 2007 and 2008.
The respondent argued that Hanne Secher simply confirmed that her evidence was a product of what she had been told by the deceased and that the evidence was therefore infected by hearsay. No authority was advanced as to why the judge erred in concluding that it was of little weight.
In terms of the evidence of Adrian Hepi, the respondent argued that the evidence was consistent with the primary judge’s view that he was not often in Townsville after 2008.
The respondent argued that the evidence of Desleigh Lindberg was similarly infected by hearsay and Ms Lindberg confirmed in her evidence that she did not have any independent basis upon which to make observations about the relationship. Similarly it is argued that the primary judge was right to attribute little weight to the evidence of Robert Lillington, as he admitted in cross-examination that his knowledge of the relationship entirely depended upon what the deceased had told him about it.
The respondent did not accept the complaints about the evidence of Peter Perkov or the failure to consider the evidence of Richard Taylor as the respondent argued that his relationship to the deceased was limited to a social basis and whilst he attended the residence twice over the course of a year, he provided little detail about those events.
The respondent argued that in relation to the appellant’s submission that the primary judge failed to provide reasons for finding the evidence of Ms Hanslow was not corroborative of the appellant’s evidence is not substantiated because the primary judge found that Ms Hanslow was infirm, unwell and vague in the witness box. The respondent argued that there were clear reasons why Ms Hanslow’s evidence was not corroborative of the appellant’s evidence and it was open for the primary judge to arrive at that conclusion.
The evidence
The submissions by both the appellant and the respondent outlined above require an analysis of the evidence the primary judge relied upon in coming to his decision, the evidence he rejected and his reasons for rejecting that evidence. The major complaints are that some evidence was misinterpreted, some evidence was given little or no weight without sufficient reasons as to why that evidence was discounted and some evidence was not taken into account at all.
There is no doubt that the primary judge was faced with a difficult task given that at trial the appellant had produced a number of witnesses who gave evidence that he and the deceased were a couple during the relevant period, and similarly the respondent had produced a number of witnesses who gave evidence that they were not. It was necessary, therefore, for the primary judge to carefully weigh up the testimony of each witness and to consider the extrinsic evidence.
There is also no doubt that the primary judge carefully examined the evidence of the appellant and was unpersuaded by his evidence in several critical areas. In particular, he was not convinced as to the appellant’s explanation about the amount of time he had declared to Centrelink that he was spending caring for his mother in order to obtain a part-time carer’s pension between January 2009 and July 2012 and the time he stated he spent with the deceased. The primary judge stated “When confronted with the circumstance that the respondent [the appellant] was spending a lot of his time with his mother and staying at nights at the West End flat he said that some of this time Sharon [the deceased] “slept over” at his mother’s place. I did not find the respondent’s [the appellant’s] evidence persuasive in this respect.”[49] That was clearly a significant finding for the primary judge.
[49]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [20].
The primary judge was also uncertain about the reliability of the appellant’s evidence about the time he spent with the deceased, particularly about the hours he worked from 2009 to 2012 given there were no tax returns. His Honour noted the following:
“…But the circumstance of the considerable hours he was working in the Austar endeavour when combined with the hours that he represented to the Commonwealth he was devoting to the care of his mother can only have one consequence. If these claims are correct then he can have had precious little time to spend with Sharon [the deceased] and devote his attentions to her.”[50]
[50]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [22].
The primary judge also considered that the appellant’s evidence about the extent to which he supported the deceased financially in early 2012 when she had stopped working but before she received her disability payment and superannuation was “longer than that circumstance would suggest”.[51]
[51]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [26].
It is not argued that those findings were not open on the evidence. It is argued, however, that there was a substantial body of evidence which substantiated the appellant’s evidence in relation to cohabitation, his commitment to the deceased and the public and reputation aspects which was not taken sufficiently into account and weighed up with those factors that he had found.
Evidence which was not taken into account
It would seem to me that there is a body of evidence which was not referred to in the judgment. I note that there was a significant body of uncontested evidence that the appellant would continually provide transportation for the deceased, particularly on social occasions, as she did not have a car. In this regard, it was evident that when the appellant did get a compensation payout in 2007, he spent the money on a Volkswagen (VW) convertible which the couple used extensively on any view of the evidence.[52] Those matters were not referred to.
[52]ARB, 380-381.
At the outset, I should note that there are a number of documents that I consider to be significant which were not referred to in the judgment. There is no doubt that the primary judge made reference to the address the appellant provided for his taxi and driver’s licences which was his mother’s address,[53] but there are other significant documents which were in evidence that were not referred to in the reasons. There were ASIC documents which listed the Metro Quays unit as the appellant’s address and as the registered office of his company Hamspee Pty Ltd from September 2002 until it was deregistered in August 2008.[54] There were also receipts from hotels which clearly showed that the appellant and the deceased would holiday together at the locations he described and that he would pay for those holidays.[55] In this regard, I note the evidence of Raymond Williams indicated that the deceased was quite often away at Airlie Beach and Port Douglas,[56] which indeed corroborates the appellant’s evidence that he and the deceased would frequently go away for weekends and that the deceased loved Airlie Beach in particular.
[53]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37].
[54]ARB, 469-475.
[55]ARB, 466-467, 476-477 and 478-479.
[56]ARB, 308.
There is also other documentary evidence that I consider to be significant and should have therefore been referred to in the judgment. Of particular relevance was a Patient Admission Form from the Townsville Hospital dated 1 March 2011, which refers to the appellant as the deceased’s “De facto” and notes the Metro Quays address as the deceased’s home address and also the appellant’s home address.[57] There is also a Discharge Summary Form at the Mater Hospital dated 21 May 2011 which notes that the deceased was discharged to “home” into the care of “Ken Spencer”, the appellant, who was identified as her “Partner”.[58] The Patient Admission Form at the Townsville Hospital dated 29 May 2012 also refers to the appellant as “De facto” and once again gives the Metro Quays address as his home address.[59] None of those documents were referred to in the primary judge’s reasons.
[57]ARB, 420.
[58]ARB, 428.
[59]ARB, 430.
In my view, the documents are significant because they are either forms signed by the deceased or attached to forms signed by her. They were clearly part of the admission and discharge process at the hospital. There is no doubt, therefore, that the deceased would have provided the information on the forms or, at the very least, confirmed the accuracy of the information given she signed the documents. The 1 March 2011 document in fact is signed by the deceased on the same page as the information appears. Accordingly, I consider that they are statements made by the deceased indicating her view that as at March 2011 the status of the relationship she had with the appellant was that they were already a de facto couple residing at that address and that the appellant was her partner. It would seem to me that they are significant admissions by the deceased and that the primary judge needed to assess that evidence or deal with it in some respect.
In terms of the other evidence which was not taken into account, the evidence of the witness Richard Taylor[60] was not referred to in the judgment at all. His evidence was that the appellant and the deceased moved into Metro Quays as a couple and that he would visit the unit three or four times a year. He spoke of them as being a ‘very close’ couple and of visiting them at the unit after the deceased’s return from Toowoomba. He stated that he would meet up with them and go to their unit for drinks and whilst it was only a one bedroom unit, it was obvious that there were two people living there, as he saw clothes and toiletries belonging to both of them at the unit. His evidence was that that situation remained the same up until the last time he visited them at the unit in November 2011. That evidence was not referred to.
[60]ARB, 550-554.
Counsel for the respondent referred to the significance of the evidence of the neighbours, Eleanor and Raymond Williams, and argued that the primary judge’s finding about the extent the appellant was present at the unit was made on the basis that their evidence was clearly preferred to that of the appellant. Counsel for the respondent argued that that reliance was a significant factor with respect to the appellant’s failure to establish that he and the deceased lived together on a genuine domestic basis. The extent to which the primary judge relied on their evidence has caused me some concern.
There is no doubt that the primary judge accepted at paragraph [11] of his reasons that the appellant and the deceased had in fact moved into the Metro Quays unit together in 2002. The primary judge also made an unqualified finding that he accepted the evidence of Eleanor and Raymond Williams. In my view, those two statements cannot sit together as they are inconsistent. The Williams’ evidence was that they lived at Metro Quays in 2002 at the time the deceased moved in, they did not consider that the appellant “ever” lived at Metro Quays and they saw very little of the appellant despite seeing the deceased daily. Their evidence was summarised in the reasons in the following terms:
“[30] Raymond and Eleanor (sic) Williams lived in Metro Quays in an apartment near Sharon's [the deceased]. Mr Williams said that he and his wife moved into Metro Quays before Sharon [the deceased]. They would sometimes have dinner with Sharon [the deceased] in a group on Tuesdays at the Cowboys Leagues Club. They also socialised with Sharon [the deceased] at Christmas parties. The respondent [the appellant] did not attend these events. He said that he was not aware that the respondent [the appellant] ever lived in the Metro Quays unit and when Sharon [the deceased] went away his wife collected Sharon's [the deceased’s] mail. His observation was that Sharon's [the deceased’s] car space was often empty, Mrs Williams said that she often saw Sharon [the deceased], passing her or seeing her almost daily. She was never introduced to the respondent [the appellant] by Sharon [the deceased] and she said that she sometimes saw the respondent [the appellant] picking Sharon [the deceased] up. In evidence the respondent [the appellant] said of Mr and Mrs Williams that he did not socialise with them and that he never introduced himself to Mrs Williams. He acknowledged that his only dealing with Mr Williams concerned an issue with respect to dust from a motor vehicle and that his only contact with Mrs Williams was a brief discussion just before Sharon's [the deceased’s] death, it was at the wake after Sharon's [the deceased’s] death that he was introduced to her.”[61] (citations omitted)
[61]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [30].
There is no doubt that Mr and Mrs Williams did not live ‘across the hallway’ from the deceased as originally asserted, but rather they lived on level 12 and the deceased lived on level 13 with a set of six or seven steps separating the levels. Furthermore, Eleanor Williams’ evidence[62] was that, despite not being introduced to the appellant, she knew who he was and that she “often saw him in the hallway at Metro Quays” and that she “also often saw him waiting in his car” at the entrance to Metro Quays. Mrs Williams also acknowledged that the appellant moved into the bigger unit at Metro Quays with the deceased near the end of her life, but Mr Williams’ evidence[63] was that the appellant never lived at Metro Quays. He did, however, indicate that there was an incident with the appellant using the loading bay to park his Porsche, which seems to be inconsistent with his statement that the appellant never lived there.
[62]ARB, 310-312.
[63]ARB, 308-309.
As I have previously indicated, the primary judge in his reasons noted that there was no contest that the couple had moved into Metro Quays together in 2002 and that the respondent in these proceedings had accepted at trial that “in or around 2002 the couple moved from Breakwater Villa into a one bedroom apartment at Metro Quays.”[64] If the primary judge was accepting the evidence of Eleanor and Raymond Williams in total, as he seemed to have done, he needed to explain why he was doing so, particularly when he made a finding which was contrary to their evidence. This was not done. That contradiction was in fact ignored.
[64]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [11].
The evidence of Belva and Allan Lena was also referred to by the primary judge to the extent that they gave evidence they were aware that the appellant was involved with the deceased for a number of years.[65] Belva Lena’s evidence, however, was that she saw no sign that the appellant resided in the unit at Metro Quays and did not consider that the appellant ever lived with the deceased at Metro Quays prior to the move to the larger unit in June 2012. She stated “No, he did not live in that unit there”.[66] Belva and Allan Lena both accepted that “Ken [the appellant] did look after her in the last month or so of her life but was certainly not living with her prior to that time”.[67]
[65]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [31].
[66]ARB, 62.
[67]ARB, 307.
In my view, the evidence of Belva and Allan Lena and Raymond Williams that the deceased and the appellant had never lived together also had to be weighed up against a significant body of evidence that they had lived together for significant periods of time. The Williams’ evidence was inconsistent with the evidence of a number of witnesses called by the respondent including Debra Thomas who stated that they had lived together at Metro Quays for at least two years from 2005 to 2007.
Given the hospital documents signed by the deceased almost seventeen months before her death that she and the appellant were already a de facto couple residing at Metro Quays as at March 2011, the evidence of Belva and Allan Lena and Raymond Williams that the appellant and the deceased had never lived together in the one bedroom unit at Metro Quays needed to be critically assessed. That was not done.
Evidence that was given little or no weight
Furthermore, I consider that by placing so much emphasis on the Williams’ evidence, there is some justification for the submission by Counsel for the appellant that the primary judge failed to come to terms with some of the other evidence. As I noted earlier, in the reasons the primary judge dealt with 20 witnesses in seven paragraphs. In particular, he took a global approach to the evidence of friends and acquaintances of both the appellant and the deceased in the following way:
“[29] Evidence was given for both sides by persons who had known Sharon [the deceased] and the respondent [the appellant] at different times. At trial there was a debate on the admissibility of the evidence. To the extent that the witnesses were able to swear to their observations and dealings with them, either as a couple or individually, which bore upon "reputational" matters, that is whether they conducted themselves consistently or inconsistently as "de facto partners" and particularly the circumstances as s 32DA of the AIA [Acts Interpretation Act] draws attention to then the evidence is admissible. But much of the evidence was hearsay in substance or opinion evidence and thus inadmissible (whether the opinion was based upon hearsay or not). I have not overlooked that statements against pecuniary or proprietary interest are admissible as an exception to the rule against hearsay but the authorities discussed in Cross suggest that care should be taken that the statements be against pecuniary interest when made, not only in light of supervening circumstances. Further even if it be that some statements or comments by the deceased might be admissible if not to prove the truth of the statements but to explain conduct at a particular time care should be taken to look for corroborative evidence in light of the circumstance that it is difficult for a party to obtain instructions and to test such evidence.”[68] (citations omitted)
[68]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [29].
I am not satisfied, therefore, that there has in fact been reasonable diligence and that the documents were able to be obtained prior to the trial. Furthermore, Counsel for the appellant argued that it had never been disputed that the appellant owes money to the estate:
“13.In an affidavit sworn 7 June 2014, the Appellant deposed that $90,332.92 had been spent prior to the restraint. It was disclosed by the Appellant in an estate account provided on 3 November 2014 that $25,000.00 of the above amount was not spent until after the date of the restraint. On 6 November 2014, the Respondent brought separate contempt proceedings against the Appellant in the Supreme Court at Cairns. The Appellant has admitted utilising monies with the intention of repaying them back. The Respondent's contentions in relation to the Appellant's affidavits dated 14 February 2013 and 7 June 2013 are in dispute in the contempt proceedings. The same comments apply in relation to the orders dated 31 January 2013. In this regard, the Appellant's said affidavit dated 14 February 2013 was in the form of an estate account that contained an error as it did not include the abovementioned amount of $90,332.92. This was not the mistake of the Respondent but an obvious error in the preparation of the account. At all times throughout the preparation of the various estate accounts, the Appellant made every effort to provide relevant documents and instructions promptly to his solicitors. Justice Henry has reserved his decision in relation to the separate contempt proceedings.”[112] (citations omitted)
[112]Appellant’s Outline of Submissions on Application to Adduce Further Evidence, 3.
In my view, the evidence which came to light after the conclusion of the trial would not have had any impact on the respondent’s case. In particular, the respondent significantly contested the appellant’s credit at trial and the only potential use that could have been made of the use of the funds would have also gone to his credit. This is clearly not a case which rests on the credit of the appellant, as it is clear that the learned primary judge did not fully accept the evidence of the appellant. The real issue in this case is whether the evidence which supported the appellant’s evidence was substantiated by the evidence of other witnesses or corroborated in some way by other documentation. Accordingly, I am not satisfied that the criteria had been met and I would refuse the application for leave to adduce further evidence.
It is clear, therefore, that the issues raised in the notice of contention rely on the admission of further evidence on the appeal. As the application has failed, so too should the grounds set out in the notice of contention.
Conclusion
I consider that the appellant has established that the primary judge failed to come to terms with the evidence and has also established that there has been an error in the application of the indicia set out in s 32DA of the Acts Interpretation Act. The appeal should therefore be allowed. I consider that the judgment given and the declarations made on 23 June 2014 should be set aside. There should be a new trial, in my view, given the significant evidence which was not evaluated. The trial judge should not be called on to re-hear the matter; the difficulties of his having to consider the evidence afresh are obvious. This is clearly a very unsatisfactory result given the elapse of time since the death of the deceased in July 2012 and the significant costs which have now clearly been expended on this appeal. The interests of justice require that any new trial be given an expedited hearing.
Orders
I would make the following orders:
1.The appeal should be allowed.
2.The judgment and declarations made on 23 June 2014 should be set aside.
3.The matter should be remitted to the trial division for determination by a different judge.
4.The application for leave to adduce further evidence and notice of contention should be refused.
5.The parties have leave to file any submissions on costs within 14 days of the date of delivery of the judgment.
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